- The Washington Times - Thursday, August 29, 2013

The Treasury Department said Thursday that legally married same-sex couples must now file tax returns as married people, granting them all the tax benefits — but also the same tax penalty — that other couples enjoy.

The ruling applies to all legally married gay couples, even if they have moved and now live in states that don’t recognize those unions. And the department said couples can go back and request refunds for 2010, 2011 and 2012 based on their newly recognized status.

As part of the new arrangement, gay couples who are legally married must file either a joint return or mark down that they are filing separately. That opens them up to benefits such as transferring gifts or estates, but also means they will have to pay the marriage penalty that hits higher-income couples.

The move follows the Supreme Court’s ruling in June that struck down the Defense of Marriage Act, which had defined marriage for federal purposes as the union of a man and a woman.

Earlier this year the immigration service began accepting applications for visas from gay partners of Americans, and it also began extending employment benefits to partners of federal workers.

Thursday’s Treasury Department ruling says that same-sex couples who were legally married on one state but have moved to a state that doesn’t recognize that union can still take advantage of federal tax benefits, such as estate and gift laws.

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“Today’s ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide,” Secretary Jack Lew said. “It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve.”

Gay-rights groups said it was a move toward equality.

“Today, America moves one step closer to ‘liberty and justice for all,’” said Wilson Cruz, spokesman for GLAAD.

Family-values groups, though, said overriding the rules in states that don’t recognize same-sex marriages was a step too far. Chris Gacek, a senior fellow at the Family Research Council, said the Supreme Court, in striking down DOMA, said it didn’t want to force states to have to accept gay marriages.

“State family policies have been undermined today by the Obama administration,” he said.

Marriage generally works out as a tax benefit for those with lower incomes, but those in higher-income tax brackets can end up paying a “marriage penalty” by filing together.

For example, two individuals each making $400,000 this year are each in the 35 percent tax bracket, but a married couple is in the 39.6 percent bracket beginning at a combined income of more than $450,000.

M.V. Lee Badgett, distinguished scholar at the Williams Institute, a think tank on sexual orientation and public policy, said the new tax policy is likely to help more couples than it hurts.

“I think it is likely to be a net benefit for same-sex couples overall. Each individual couple will have its own individual circumstances that will determine that, but overall I think it’s likely to be a benefit,” she said.

She said one big benefit is that couples who work for companies that offer health insurance for gay and lesbian partners have to pay taxes on the insurance, which is considered taxable compensation. The new rules eliminate that — which she said works out to an average savings of about $1,000 per couple.

Thursday’s ruling only applies to official marriages. Those who have domestic partnerships or civil unions are not eligible.

Gay-rights groups said the decision to apply the rules nationwide puts the Treasury Department at odds with the Social Security Administration, which earlier this year said it will pay benefits only to married same-sex couples who live in states where those unions are recognized.

Ms. Badgett said it would have been a nightmare for the IRS to make its policy apply only to same-sex couples living in states where that marriage is recognized, because their tax status could change every few years if they moved frequently.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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